Is the Individual Mandate Constitutional?

Below is today’s column on the constitutional challenges to the health care legislation. I will be participating in a live chat at 1:00 p.m. at the Forum with USA Today.

The new health care law has states and citizens lining up — but not quite in the way President Obama or Congress had hoped. Across the country, lawsuits are being filed that could have sweeping implications, not just for health care but our constitutional system. To date, 14 states have joined the stampede to the courthouse to challenge the legislation. One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states’ rights in U.S. history.

With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers. If a citizen who fails to get health insurance is an interstate problem, it is difficult to see the limiting principle as Congress seeks to impose other requirements on citizens. The ultimate question may not be how Congress can prevail, but how much of states’ rights would be left if it prevailed.

Hypocrisy rears its head
To get to the constitutional question, you first have to strip away the deep layer of hypocrisy in Washington. Many lawmakers now screaming about the sanctity of federalism voted for prior laws that were overturned by the Supreme Court on federalism grounds. Moreover, few of these mostly Republican members uttered a word of support when states opposed federal interventions on medical marijuana and physician-assisted suicide during the Bush administration. The guarantee of federalism was essential to ratifying the Constitution and embodied in the 10th Amendment guaranteeing that “powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Historically, however, federalism is a constitutional rule honored largely in the breach by Congress.

For states’ rights advocates, the Constitution is like a contract that is openly violated by one party with impunity. On paper, the states remain sovereign powers, while in reality the federal government appears able to dictate everything from the ingredients of school lunches to speed limits. Congress now routinely collects taxes in order to return the money to the states with conditions on their conforming to federal demands.

There is no serious basis to challenge the right of Congress to impose a national medical plan on the states. In 2008, this country spent $2.3 trillion on health care — representing 16.2% of our gross domestic product. This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals. Congress would need to show that the failure of an individual to get medical insurance constitutes an interstate commerce matter.

To be sure, the Supreme Court has stretched the meaning of interstate commerce to cover such things as the farmers growing wheat for their own consumption. Indeed, many long ago wrote off federalism as a rather quaint and outmoded concept. In Wickard v. Filburn (1942), Roscoe Filburn was growing wheat to feed his chickens, but the Supreme Court still defined the activity as interstate commerce because his crops reduced the amount of wheat on the open (and national) market. However, this was at least a traditional commercial activity. With the newly minted health care law, Congress is effectively ordering a citizen to buy a product and treating the uninsured citizen himself as an interstate problem in the same way Congress regulates endangered species.

‘Inference upon inference’
When Congress has ventured outside of traditional commercial areas, it has run into trouble. For example, in 1990, Congress criminalized certain conduct as part of its Gun-Free School Zones Act. The Supreme Court struck it down in 1995 and held that such laws did not substantially relate to interstate commerce. The court refused to “pile inference upon inference” to find an interstate claim.

This brings us back to that 18-year-old Virginian. Congress is declaring the failure to insure oneself to be an interstate matter. There is no question that being uninsured contributes to the national crisis in health care. If that 18-year-old has a car accident, it is the public that is likely to bear the costs of his care. However, if the failure to get insurance makes one the object of federal jurisdiction, it is hard to see the why other acts of omission will not be tied to national deficiencies in public health or education or family welfare.

Though strong arguments can be made for health care reform and the individual mandate, these are matters that should not be decided by mere fiat of Congress but rather by the courts. Federalism was already on life support before the individual mandate. Make no mistake about it, this plan might provide a bill of good health for the public, but it could amount to a “do not resuscitate” order for federalism.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

102 thoughts on “Is the Individual Mandate Constitutional?”

“This is a national crisis demanding a national, as opposed to a state-by-state, solution. Yet, recognizing federal jurisdiction over health care does not mean that Congress is free to use any and all means to achieve its goals.”

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Individual insurance mandates are nothing new and have passed constitutional muster at the state level in the past. Just look at state imposed mandatory automobile insurance or HUD mandated home owners insurance. The statement above is also a tad curious. Why, when faced with an admitted “national crisis,” would Congress be reluctant to use the entire panoply of constitutional powers available to address it? Finally, I can think of no issue that bears as directly on interstate commerce as profit- drunk health insurers imposing wave after wave of exclusions, price increases, and unreasonable coverage denials on citizens of differing states with little effective state regulation. To me, this the classic case for national regulation of a supposed “regulated” industry.

Professor
I’ve heard several cogent arguments put forth that seem to support the mandate as Constitutional.

1) Are we not mandated to buy FICA insurance? Are we not mandated to enroll in and accept Medicare?

2) There is also the precedent of mandating that all US auto manufacturers to install seat belts. This appears to be applicable particularly in light of the SCOTUS’s Citizens’ United finding. If corporations have the rights of people, then since the fed can mandate a product compliance for corporations, they certainly can mandate people’s actions.

3) I’ve heard Senator Ron Wyden (D-Ore) state the bill includes opt-outs for states. They can develop their own plans even excluding the individual mandate as long as they meet certain minimum requirments. Certainly the fed has established minimum standard guidelines in he past.

4) I’ve also heard the bill is written such that it charges every person and every company a tax. The fed’s authority to tax is certainly Constitutional. The bill then provides a 100% tax credit for having health insurance from any source.

We have some pretty darned bright legal minds hanging around here. I’ll leave the determination of the validity of the above and other points to you and to them.

4. Currently US House of Representatives is set approve via reconciliation one of two versions of the Health Bill (House Bill HR 3962 and “Senate Bill” to be reconciled in the House as HR 3590 are substantially Different). Defendant has repeatedly stated that if such bill is passed and reconciled as early as next week, he will immediately sign it into law in spite of general public outcry against such bill. This signing of the bill is imminent as Defendant, his administration and Democratic party leadership have engaged forceful arm twisting and de-facto bribery of US Senators in order to push passing of such bill, whereby Senator Mary Landrieu of Louisiana got a 100 million dollar de-facto bribe (Better known as a new “Louisiana Purchase”), senator Christopher Dodd of Connecticut got 300 million de-facto bribe and Senator Ben Nelson of Nebraska got an infinity amount of dollars de facto bribe to sign the Senate version of such bill. [unquote]

Then she moved to consolidate it with the other cases:

[quote] UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Dr. ORLY TAITZ, ESQ, PRO SE

Plaintiff,

Barack Hussein Obama,

Defendent

§ 28 USC § 1407(c)(ii)

Pursuant to 28 USC §1407(c)(ii) Plaintiff Orly Taitz moves for the Multi District Judicial Panel to coordinate and consolidate this action with Florida et al. v. United States Department of Health and Human Services et al., United States District Court for the Northern District of Florida, Pensacola Division, Case No. 3-10-cv-91 and motions for both actions to be heard jointly by the Honorable Royce Lamberth in the US District Court for the District of Columbia. [unquote]

As Bob and I have gnawed on before, Commerce is an oft abused clause and I feel this to be a case of exactly that: abuse.

The current bill is a half-step at best and will only serve to prop up insurance companies – companies that along with oil companies – exemplify the very worst capitalism has to offer. The very nature of health care and its key relationship to national security indicate that profit skimming – call them “premiums” all you like – needs to come out of the system. Money spent on excessive administration costs – like vacation junkets and perks – is simply better spent on patients. If we are being charged a tax, then it makes more sense to have those dollars go directly into patient care, not some CEO’s pocket. What we’ll have here is what we have now – a hodge podge of state laws with a Federal overlay that will still encourage abusive rate changes and denial of coverage. People will still not get health care because the greedy bastards in Washington insist on monetizing our health for their profit when in most of the Western world health care is a right.

So by all means, let’s go with more of the same asshats who’ve allowed this country to pay the most for health care and still continue to rank around 40th in WHO quality of life and services reports. Yeah, let’s prop them up with a mandatory tax and then continue to let them fuck us over for profit while our relatives and loved ones can’t get treatment.

What exactly are state rights? Since about 1861 it has been stated with particularity what is not regulated or preempted by the Federal Government is left to the Individual States. What exactly is that?

While I agree with your comment in spirit, I would ask you to consider that while judicial fiat negates the will of the people, our current system of electing Members of Congress virtually ensures corporate fiat, which does the same thing.

I disagree with the often-repeated notion that “federalism is on life support.” People often reach this conclusion when the states seem to “lose” a policy debate that they care about, but state-federal relations are incredibly complex, and when you start looking at the details across a range of policy areas, you see that the states *win* a lot of their encounters with the federal government or at least fight them to a draw. I’ve written a book that documents many of these state “wins” in policy areas like welfare reform, environmental policy, and education policy. See http://www.oupress.com/bookdetail.asp?isbn=978-0-8061-4003-2

I also describe the many points in the policymaking process at which state officials have opportunities to “push back” against the federal government if they choose. Just because Congress has passed a law doesn’t mean that’s the end of the story. A lot of details about health care reform still need to be fleshed out through the rulemaking process, and states have a voice in this process.

So, we don’t need to be too quick to take every new, apparent setback for states as the final nail in the coffin for federalism. Observers have been saying the sky is falling in this regard for over 200 years, but state governments are still pretty robust when they want to be (e.g. when they give themselves sufficient revenue bases, lawmaking powers, enforcement powers, etc., to get things done).

Neither conservatives nor liberals like to talk about states’ “wins” against the federal government. For conservatives, it undermines their claims of a massive, all-powerful federal bogeyman. For liberals, it makes it seem that the federal government can’t assertively solve problems without substantial state buy-in. So, we don’t hear the narrative of powerful state governments very often, but I think there’s a lot of evidence to support it.

I don’t want to stray too far off the point of the Constitutionality of the HCR bill, but I read that Sen. Cronyn took a new and rather interesting twist in the GOP’s anti-HCR campaign. Now he wants the GOP to being taking credit for the elements within the bill which have been tauted as originally Republican ideas.

It was actually Sen. Grassley who originally proposed the individual mandate in 1993. His current offering of an explanation of his sudden disavowal was this: “Well, if it is unconstitutional now it was unconstitutional then. Quite frankly, no one thought about it one way or the other.” WTF!

But Cronyn is really creating a problem for the GOP with this twisted logic by trying to claim credit for certain concepts held in the bill. If those were good Republican ideas, why didn’t they support them? If their ideas were included in the ill, they can hardly claim no involvement or that their ideas weren’t heard. The bill could easily be called a bi-partisan victory by the liberals while making the GOP look foolish for not backing a bi-partsan effort. Are they only going to repeal the portions of the bill they don’t claim?

I disagree that the problem is health insurance companies exemplifying the worst capitalism has to offer (although they frequently do). The problem is that ANY for-profit health care system gives an incentive to deny care (since this means lower profits).

The Attorney General of Ohio has refused to join the wave of lawsuits against the health care legislation.

As an experienced constitutional lawyer, he found that “the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy.”

He noted that the law “provides the states with a choice, and if they decline, the federal government will take on that responsibility.”

He declined to waste taxpayer dollars on political agendas through symbolic lawsuits that only deplete the limited resources of the State as well as the courts.

(COLUMBUS, Ohio) — Ohio will not join other state lawsuits filed to prevent implementation of H.R. 3590, the Patient Protection and Affordable Care Act, Attorney General Richard Cordray announced today.

“Based on my review of Ohio law and H.R. 3590, and my experience with federal constitutional law, I do not believe that the lawsuits filed against the Patient Protection and Affordable Care Act have any legal merit whatsoever,” Cordray said. “As a result, I believe it would be a waste of taxpayer resources for Ohio to join any such lawsuit, and we will not be doing so.”

Cordray said he drew upon his experience as an appellate lawyer and law professor to research the request and make his decision. “I had the good fortune to clerk for two United States Supreme Court justices, Byron White and Anthony Kennedy. These justices – appointed by Presidents Kennedy and Reagan, respectively – each taught me to review constitutional challenges to federal laws with great care, always keeping in mind the proper balance of power between the states and Congress within our federalist system. In turn, I tried to convey this same respect for federalism to my students during 13 years of teaching constitutional law at The Ohio State University Moritz College of Law. I have also encountered such issues in some of the seven cases I have had the privilege of arguing to the United States Supreme Court.”

Cordray addressed the two constitutional claims raised in the lawsuits:

Commerce Clause: “For 70 years, the U.S. Supreme Court has read the Commerce Clause broadly to authorize Congress to address our most pressing national economic concerns. In fact, during George Washington’s first term as President, under the Second Militia Act of 1792, Congress explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder and a knapsack to be properly prepared for military service. In the health care law, the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy.”

Tenth Amendment: “For those who contend that the states alone can address insurance problems, the logic of their position is that we are condemned, forever, to an unsatisfactory ‘patchwork quilt’ of conflicting provisions and mixed results. This is precisely why our Founding Fathers rejected the anemic Articles of Confederation as inadequate, authorized Congress to legislate on matters of interstate commerce, and then made its laws supreme, notwithstanding any state laws to the contrary.

“Nobody can seriously argue that the health care industry operates only in ‘intrastate’ commerce, and the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.

“Critics of the new law argue that the Tenth Amendment does not permit Congress to require states to establish insurance exchanges. But the law does not require that; it provides the states with a choice, and if they decline, the federal government will take on that responsibility. Just as Medicaid is a voluntary federal-state program whose constitutionality has been upheld by the courts, the health care reform law is entirely consistent with the Tenth Amendment.

“In these difficult budget times, I do not believe in wasting taxpayer dollars to pursue political agendas through symbolic lawsuits, which only deplete our limited resources, as well as those of our courts. Instead, the Ohio Attorney General’s office will continue to focus on our efforts to protect the financial security of Ohio families by holding Wall Street accountable and helping to level Ohio’s economic playing field.” [uq]

The purpose of the Constitution of the United States is to limit the power of the Federal government. The current health care law is a total abrogation to that purpose. Although I can appreciate the esoteric discussion about Federalism, the more important element of this disaster of a law is the fact that the Federal government is promulgating its citizens to enter into a specific type of commerce. I submit to you that nowhere in the Constitution does that power exist with the Federal government. If we acquiesce to this level of tyranny, then where does it stop? We can all create excuses as to why we would surrender our personal liberties to the government, but that does not make it correct. This health care law is an abomination to our great nation and should be vacated by the courts.

I just read your article, Professor Turley,via RealClearPolitics and thank you for taking up the topic as a Constitutional law scholar. There have been too many blithe and out-of-hand dismissals of the possibility of a legal challenge from pundits without legal expertise. It seems a very real possibility that the states’ challenges will go to the highest court, but I wonder, given the Supreme Court’s recent decision in favor of the corporations and their “personhood”, if the Court will not look more kindly upon the federal government because of the support the HCR bill gives to the health insurance and pharmaceutical industries.

If I remember correctly he was concerned about no Bill of Rights (rectified) and at least three other areas … hope I have them right … legislative powers not well enough defined (to his standards), too much power within the executive as opposed to the legislative and not enough protection for the country from the judicial department.

I can’t remember if slavery was an issue for him like it was for Mason.

Then again … the term gerrymandering came from his name and practice of same.

When people start arguing about the Constitution I always think of the “super-secret” deliberations and all the patriots who were against it. Sometimes their reasoning (in the past) sheds light on our present day questions and dilemmas.

I figured I’d better google the guy in case my memory was wrong and before somebody landed on me … memory had not served me well in that I forgot he served as V.P. so he obviously came to terms with his objections.

There seems to be so much misinterpretation of the Constitution out there or perhaps just misunderstanding and I wonder if some of it stems from the “lore” of our past.

I’m going to find a good book on ol’ Elbridge to learn what path he followed after the Constitution was ratified … how he came to terms with his initial objections.

I did some Gerry-checking as well. I found it interesting he changed political parties during his poltical life. He was one of John Adams’ delegates to France, got mixed up in the XYZ Affair and on his eventual return to the US, abandonned the Fedreralists and joined the more progressive Democratic-Republicans, the party founded by Jefferson and Madison. It was under Madison that he served as VP. It’s certainly noteworthy (perhaps shamefully so) that his name is derivation of the term gerrymandering.

Mike in Dc – don’t know about that, but if he did, were the sailors government employees? If they were, that would be different than requiring us to do so. We don’t work for the government. If they weren’t government employees then Adams was wrong, as our government is now wrong.

Act of 1843, Chap. 99. An act amendatory of “An act for the relief of sick and disabled seamen.”

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the provisions and penalties of the act of the sixteenth of July, one thousand seven hundred and ninety-eight, entitled ” An act for the relief of sick and disabled seamen,” be, and the same hereby are, extended to the masters, owners and seamen of registered vessels employed in carrying on the coasting trade ; and the secretary of the treasury is authorized and directed to issue such instructions to the collectors of the various ports as shall secure the collection of hospital money from said seamen, masters and owners. [Approved, March, 1, 1843.]

Professor, like several other commenters, I’m curious about your thoughts on the idea that the taxing power may offer surer support for the individual mandate in the health care bill than the commerce clause. The tax on the uninsured, while clearly an incentive to do something, is also designed to raise revenue. . . .

My thoughts of all this have centered around what I expect to happen…I expect that as they government begins to collect the taxes now for the benefits that are due in 2014, we’re going to experience another social security type of situation where we realize there was no “lock box” for health care either. I fear the money will become part of the general fund with IOU’s placed in this socialist program – and we suddenly have dug an even deeper hole than we are in now.

Not sure what they are teaching in Ohio, but here in Virginia we were not aware that, “The purpose of the Constitution of the United States is to limit the power of the Federal government.” In fact, just a cursory reading will reveal to those, like you, who have an apparent dis-affinity for reading, that the document clearly establishes a strong federal government. Under the predecessor Articles of Confederation and (not so) Perpetual Union, the federal government was a toothless tiger, but even in 1781, the nation’s leading thinkers (fresh off the Revolution, I might add) realized the limitations of governing so vast a nation with Vermont-style direct democracy or a patchwork of state laws that varied with the crossing of every river or mountain range of note.

You may be referring to Madison’s Amendments comprising the Bill of Rights, which did affirm and establish zones of protection for individuals from federal power. However, no fair reading of the document, taken as a whole, leads one to any conclusion other than HCR is a national solution to a national problem of the exact sort that the founders envisioned in their directive to the new government to “promote the general welfare.” A familiar phrase, I hope, even for those in Ohio. :)

Although I am late to the party, I have to agree that Mespo and RCampbell hit the nail on the head. I have to disagree with Prof. Turley’s take on this legislation. The health care costs that we all have to absorb if someone is uninsured effect the interstate commerce substantially.

If there was such a point we could, but this is more right-wing drivel drawing some distinction between “promote” and “provide for.” It based on some simplistic view of the phrase “promote the general welfare” which they interpret to mean that government may only provide economic opportunities via infrastructure and the like, and not direct payments to those Congress deems in necessitous circumstances or are otherwise deserving of funding. This is not the meaning of the phrase as announced by the SCOTUS. In United States v. Butler, the Court struck down the Agricultural Adjustment Act, which taxed processors in order to pay farmers to reduce production. Although invalidating the statute, the Court adopted the Hamiltonian view that the General Welfare Clause is a separate grant of congressional authority, linked to and qualified by the spending power. In Helvering v. Davis (1937), the Court again took up the General Welfare Clause in the context of the 1935 Social Security Act, and required only that welfare spending be for the common benefit as distinguished from some mere local purpose. In Flemming v. Nester in 1954, Justice Stone wrote that questions concerning the propriety of conditions imposed on spending, and questions concerning the generality of the benefits, were for the Congress to resolve–-subject to judicial invalidation “only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” The General Welfare Clause thus represents Congress’ separate power of appropriation to spend public funds to promote the public good as it sees fit subject only to constitutional requirements of generalized benefits, and rational spending classifications.

Do neither of you possess an ounce of respect for this blawg and Professor Turley? During his USA forum chat this afternoon, he invited people to venture to this blawg to comment further on HCR after he ran out of time.

Imagine that decent-minded, respectful people might access this post/blawg for the first time from Prof Turley’s invitation to learn more from a Constitutional legal scholar and then are confronted with your petty, urban dictionary, Abbot-n-Costello back-and-forth grade school gutter talk. Clearly, you staged your “two-poster” act because it would not have “worked” otherwise.

I think that the main reason you both are here is to try to purposely disrupt the discourse and try your best to discredit a fine man, scholar, and teacher. Your pathetic attempts will not succeed in your main goal, although you are successful to the extent that you foul the place with your presence when you add the mud to your sometimes-decent postings.

I like this description of Federalism by John Nugent, accessible via the link provided in his earlier post.
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Quote:

The checks and balances built into the U.S. Constitution are designed to decentralize and thus limit the powers of government. This system works both horizontally—among the executive, legislative, and judicial branches—and vertically—between the federal government and state governments. That vertical separation, known as federalism, is intended to restrain the powers of the federal government, yet many political observers today believe that the federal government routinely oversteps its bounds at the expense of states.

Mespo – “right wing drivel”? I make a simple statement about something I’ve wondered and you take a sophomoric approach to responding to me. Your response would have commanded much more respect and consideration if you had left out the aforementioned three words.

Blouise – even if there is a “lock box” on health care funds…can we really trust our federal government to keep their hands off said funds?

My fear is they’ll start taxing now for benefits beginning in 2014 and it won’t take long before they’ll be in need of funds for other projects and then will realize, “hey, we’ve got this money here. Lets shift it to this and pay it back down the road.”

IF YOU HAVE A PROBLEM WITH MY COMMENTS ON THIS BLAWG, I SUGGEST YOU CONTACT PROFESSOR TURLEY. YOUR SOUTHERN BAPTIST ROOTS ARE SHOWING. (yes, all caps is yelling)

Innuendo creeps its way into this blawg on occasion. As long as it doesn’t get out of hand nobody seems to have a problem with it. As you can see by reading my comments above, when it appeared to be going in that direction I stated such and it stopped.

Given the number of IOU’s in Social Security, I understand your concern.
I am in favor of a full public option and I support this Bill, though I am disappointed that it didn’t go further. I really don’t mind paying taxes … I’d never make it as a teabagger … but I don’t like to see my tax dollars misused … their misuse is an abuse of my good-will.

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FFLEO,

Thank you for emphasizing John Nugent’s post … the quote you brought to the forefront was well worth a second read.

I agree wholeheartedly with Mespo. This is a commerce clause case. Despite the seeming proclivity of the current bloc of conservatives on the Supreme Court to pay only lip service to the doctrine of stare decisis, the chances that they will find the health reform legislation an instance of constitutional overreaching are virtually nil.

I can’t understand how those who consider the Constitution to be a ‘living’ document (when they want it to be), can also expect the Court to adhere to a doctrine that cannot and should not apply to our highest court. While I think the Court should consider stare decisis to be influential, they should not look upon it as binding. To do so would imply that Justices of our past were able to better interpret the Constitution than those of the current or future Court.

Blouise – I’m 180 degrees from you. This bill should have been scrapped and we should have started over. I don’t believe for a moment that this is about anything other than gaining more fiscal control and personal control on our lives – it is wrapped up in the “good feelings” of health care for all.

The government will screw this up, just as they have screwed up SS, Medicare, Amtrak, the postal service, etc. The money is not there and never will be without breaking the back of this country which will make us totally dependent upnon 537 people in DC – which is the end goal.

Duh, I don’t understand the doctrine of stare decisis to mean that we treat what has been previously decided as though it were carved in stone. But I do believe that stability and predictability are critical in the law. The fact is that there are hardly any areas of commerce that do not have a significant interstate impact and we are never going to return to the days in which there were. I view the commerce clause as a grant of authority to Congress to legislate in those areas of the economy in which the economic impacts of policy determinations are national. Opponents of reform have harped unceasingly on the fact that health care represents 16% or more of the economy. If that’s not sufficient to fall within the purview of congressional authority, what is?

Mike Appleton said “I don’t understand the doctrine of stare decisis to mean that we treat what has been previously decided as though it were carved in stone. But I do believe that stability and predictability are critical in the law.”

I agree with you completely, Mike (at least when it comes to the highest state and federal courts). I was merely pointing out how the idea of a living Constitution is not compatible with that doctrine. I don’t believe the Constitution is a living document. I think the only way to breath life into the Constitution is through the process of Amendment. As such, the doctrine works well with my belief. However, I also believe that current and future Justices can correctly determine that the previous Court ‘got it wrong’, and if that is their belief, they have a duty to revisit the previous opinion and correct it. When doing so, they should acknowledge the precedent in their opinion, and give their reasons for doing so.

It’s when the lower courts ignore the doctrine, and the appellate courts refuse to address their failure to be bound to such, that we have real problems. I happen to live in a state that does that, and it disgusts me.

Alexander Hamilton once stated “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

First, in keeping with the subject of the thread … having read
Mespo and Mike A. (two posters whose writings are always informative and trustworthy) I don’t think this Bill will be successfully challenged.

For the rest of your post:
I’m a firm believer in the active role of government. I understand how difficult it is to insert a “public option” into what is mainly a for profit system. But I am one of those who believes that good healthcare is a right that should be extended to all citizens … the same way I believe that access to clean water is every citizen’s right. Such things are the reason, in my opinion, governments exist.

When the “for profit” system fails to do so, as this system has, then it is time for the government to step in, on behalf of its citizens and force the issue. My disappointment in this Bill is huge because it failed to truly force the issue. My disappointment in this President and this Congress is just as great.

Although I agree that they (the government) have botched a great many things, I also blame us (the citizens) for caring so little about what’s going on in our state and federal capitals. We keep sending the same fools back, election after election, and then complain about how they never change. We get what we vote for … well, except in the case of President Obama where I got someone much different from the guy who asked for my vote. I really misread him!

” … gaining more fiscal control and personal control on our lives” (Sam) – I need a more in-depth explanation of your view on what government should be before I can agree or disagree with you.

I do understand that healthcare accounts for 16% of the economy, but the overwhelming majority of that is at the state level. Insurance companies have always been regulated by the state. (At least I am under the impression that they have.) I think the problem may be that the federal government has decided to takeover what has long been a state function.

Whether or not it is Constitution is an interesting question. I don’t believe it is. However it does not address the crucial questions. Is it workable and can we afford it?

My answer is no on both accounts when you look at it in the long run. Businesses will opt out followed by some States & municipalities who really can’t afford t5o provide Healthcare anymore. California has a huge unfunded medical liability that is just getting worse.

We don’t seem to understand our country is moving towards a real financial meltdown when we won’t be able to borrow at low interest rates and our liabilities in entitlements & interest payments overwhelm us. It is only the borrowing of Two Trillion Dollars that gives the appearance we are pulling out of this recession. The double dip will come in 2012-14

Obama & Congress passing this bill is just an example of mental masturbation as we can never fulfill its promise. The train wreck is approaching and our leaders are not facing it.

“Mespo – “right wing drivel”? I make a simple statement about something I’ve wondered and you take a sophomoric approach to responding to me.”

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I can only hope to match the elegance, gallantry, and grace contained in your introductory comment to this topic which flowed like music from heavenly harps: “Joe-that’s an argument I’ve had with my sorry excuse for a Congresswoman ….”

By the way, no one said you were right wing drivel, merely that you were repeating their dubious “bumper sticker” legal analysis.

“Alexander Hamilton once stated “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

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That is undeniably Hamilton’s sour view of judges and in keeping with his penchant for a strong central government free from legal constraints to temper the popular will. This approach stands in stark contrast to Jeffersonian democracy which viewed concentration of political power as a manifest evil to be counterbalanced by judicial, executive, and legislative jealousies for power. While Hamilton was a great figure in our history, there must be something in our national character that insured that his face would be conspicuously absent from Mount Rushmore and our roll of Presidents:

“Pay no attention to what the critics say. A statue has never been erected in honor of a critic.”

I’m not a big fan of Hamilton’s views on many subjects. However, Hamilton’s view requiring judges to follow precedent would tend to prevent what we have today. (I’m referring to the lower courts) That is, a crap shoot. From lower courts completely ignoring precedent, to appellate courts willfully ignoring and hiding those errors via memorandum opinions, the legal game of craps is not only permitted, but perpetuated. Following precedent provides for continuity in our legal system. In fact, the sole purpose of the doctrine being discussed is to provide that continuity.

Mespo – unfortunately you are misdirected on it again. You assume my “right wing drivel” was from a bumper sticker when I clearly stated it was something I’d been wondering about. I am capable of forming my own thoughts and, truth be told, the question seems logical. Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.

If the state’s law suits are to be about constitutionality and the federal gov’t argument will be commerce. Do the states have an argument based on the financial hardships they claim (I haven’t read the bill) the federal gov’t is going to be placing back on them by reducing it’s own responsibilties (funding/cuts) to medicare/medicaid?

“I clearly stated it was something I’d been wondering about. … Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.”

My question was just that, because I am not a lawyer and was curious. Are you truly that conceited that I should care what road you choose to travel in your life. In addition, is it your sole opinion as to what is “constructive” that matters on this blog? You obviously only wish to have discourse with like minded individuals, I wonder how that’s working out for you in reality versus cyberspace? Your attitude is very telling and a symptom of why there is so much derision in this Country. Sorry to bother you. “Homo homini canis est!

I have stated before, if you received a swine flu shot you are a sheep being herded. What will they think of next.

Despite months of dire warnings and millions in taxpayer dollars, less than half of the 229 million doses of H1N1 vaccine the government bought to fight the pandemic have been administered — leaving an estimated 71.5 million doses that must be discarded if they are not used before they expire.

“My question was just that, because I am not a lawyer and was curious.”

*************

Sorry, Joe, but I find you more troll than curious. The curious are not certain enough to challenge their congressperson. You’ve just been spouting the propaganda, and feigning hurt feelings when called for it.

mespo727272
1, April 1, 2010 at 7:11 pm
“I clearly stated it was something I’d been wondering about. … Your comments have done nothing constructive and have taken the topic down a road I don’t care to travel so I’ll look to others.”

****************

cf., “Joe-that’s an argument I’ve had with my sorry excuse for a Congresswoman – promote vs. provide the general welfare – big difference.”

This is the first “argument” I ever heard about that was started by the wide-eyed, innocent, and academic “wondering” of a constituent. Sorry, Sam, but words written, like facts, are pesky things.

Mespo it is unclear to whom you were addressing your previous comments and I believe you have confused the string of whom was writing to whom. I did not make the comment regarding the congresswoman that you originally ascribed to me. Argumentum Ad hominem? Hic Sumus nunc place nobis.

Geez … the last Latin class I took was in college when I was preparing Verdi’s Requiem … so off I go to google and something comes up about puppies which I knew had to be wrong … then I get “Man is a wolf to man” except the latin word should be lupus so does canis mean dog (the puppie thing again) … and then the jackass thing

The correct would be canis lupis, but mespo and I were getting into the gutter so I was using the slang vernacular, even though it turned out that we were both writing over a misunderstanding.
mea culpa for answering without reading

The correct would be canis lupis, but mespo and I were getting into the gutter so I was using the slang vernacular, even though it turned out that we were both writing over a misunderstanding.
mea culpa for answering without reading

==============================================================

Slang latin? Isn’t classical enough? Take pity on this poor musician … I don’t know if google even does slang latin …..

[…] Turley on the Individual Mandate Jonathon Turley writes about the constitutionality of individual mandate. With this legislation, Congress has effectively defined an uninsured 18-year-old man in Richmond […]

Professor Turley has stepped over from law into history. He seems to be selling the old states rights nostrum of the “sovereign” states that contracted to create the Constitution. He wrote:

“For states’ rights advocates, the Constitution is like a contract that is openly violated by one party with impunity. On paper, the states remain sovereign powers, while in reality the federal government appears able to dictate everything from the ingredients of school lunches to speed limits. Congress now routinely collects taxes in order to return the money to the states with conditions on their conforming to federal demands.”

But the concept of sovereign states contracting formally to found a league or confederation of States has little basis in history. Here is Sean Willentz on the topic:

“But President Andrew Jackson proclaimed nullification pernicious nonsense. The nation, Jackson proclaimed, was not created by sovereign state governments—then, as now, a basic misunderstanding propagated by pro-nullifiers. Ratified in order ‘to form a more perfect union,’ the Constitution was a new framework for a nation that already existed under the Articles of Confederation. ‘The Constitution of the United States,” Jackson declared, created “a government, not a league.’”

Looking at the Constitution itself, the States have very limited sovereignty. They cannot make treaties, and cannot even enter into compacts with fellow states without congressional consent. They are obliged to extradite criminals, and have no sovereign right to refuse to honor the public acts of other states. They cannot mint coins, emit bills of credit, or lay imposts or duties on imports or exports. They may not pass bills of attainder, grant titles of nobility, or issue letters of marque and reprisal. Unlike the federal government (which may enact uniform bankruptcy laws), the states cannot impair the obligation of contract.

Look at the Constitution itself. If it had been a a contract between the States, then the States would have signed it. But they did not. The Framers signed it. The States did not ratify it, either through their legislatures, courts or governors. The people of the several states ratified the Constitution in conventions assembled for that purpose, and for no other purpose.

The Constitution is the supreme law of the land. It created a limited federal government, but it also imposed limits on the potential tyranny of the several states. The contract, if any, was between the people and the new federal government. As Professor Willentz demonstrates, the states rights doctrines of nullification, interposition and massive resistance were the inventions of revisionist historians down through the years.

If the states want to challenge the health care mandate, they must point to the violation of specific provisions of that constitution, not simply plead “sovereign” rights of states. The states are not sovereign. They are governmental entities with written limits on their sovereignty, just like the federal government.

The reason “Nullification” would be a problem is that laws nullified by one state, would still have full force in another. This is also a good reason why only the Supreme Court, a court whose jurisdiction is controlling over all other courts, should be the only court having the power to nullify an Act performed under the authority of the United States. When a lower court voids such acts, it expands the jurisdiction of that court without authority, or it creates a situation in which the laws of the United States only have force and effect in particular jurisdictions.

§ 28. The States are not completely Sovereign, (a) It follows from what has now been said that the States are not supreme or sovereign, in the strict sense of these words, since there is a power above them. The particulars in which they have parted with their sovereignty include all the powers exclusively vested in the federal government, and all the powers prohibited by it to the States. These will be fully enumerated hereafter. For the present, it is sufficient to say, in general terms, that the States have ceased to be sovereign in relation to all national objects, but retain a qualified or partial sovereignty, extending to all internal objects. If there could have existed any doubt on this point, as the constitution was originally framed, such doubt was removed by the tenth amendment, which declares that ” the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This language, while it makes the people the source of all power, both in the federal and State governments, expressly subtracts from the sovereignty of the States all the ” powers delegated to the United States,” and “prohibited to the States,” but leaves the States sovereign in regard to their ” reserved powers.” Again, the States are not altogether foreign with respect to each other. This is evident from the views already presented, since they are parts of the same nation. But I will here state several of the more important particulars in which they have ceased to be foreign by the express provision of the constitution. First, no State can refuse to give ” full faith and credit to the public acts, records, and judicial proceedings” of every other State. The importance of this provision will be more fully explained in the sequel. It must be observed, however, that this provision is not intended to interfere with the great international doctrine, that no State is bound to recognize the laws of another State affecting either persons or property within the former. No laws can have, as a matter of right, an extra-territorial operation. If, therefore, we give effect to the laws of other States or nations, it is on the principle of comity ; and this principle prevails to a very wide extent in modern times. I have only room here to say that with this general doctrine the above provision does not interfere. The States are still left to give effect or not to the laws of their sister States, on the principles of comity, established by their respective legislatures, void as violating the intent of the constitution, though not within the letter.

(a) See Bliss on Sovereignty. The relations of the States may, perhaps, be expressed in the following propositions : —

1. Each State is solely and entirely sovereign within its territorial limits, except only so far as it is made subordinate to the federal government.

2. No law of any other State can have force within its limits, except by its adoption, from comity or otherwise.

3. No rule of comity can in any case require it to allow privileges to citizens of other States which it denies to its own citizens ; the demands of comity being entirely satisfied when we make others equal to ourselves.

Are you sure you got that right? I’m no mespo, but mulus is not a Latin word I’m familiar with nor it is in that handy Latin-English dictionary. Wrong would be nefas as in interdum vir est nefas, but otherwise I’ll have to admit I’m drawing a blank on that one. I’ve been wrong before expect when I’ve been mistaken.

I think that there was a disagreement over this. If my understanding is correct and it has been fuzzy before that is why the states can have standing militias and the Feds can’t. I honestly believe that the founding folks intended for each state to be independent and when a dispute arose the Federals were to resolve cases and controversy. Fast forwarding, then came the seat belt law. It was to be used only for a secondary offense, now look at where are. It is a primary offense in most states…..

Concerning Ohio’s AG Cordray. He concluded that State lawsuits had “no merit whatsoever” also pointing out he worked for Justice Kennedy. He must not have read the Justice’s Lopez opinion concerning the commerce clause.

Justice Kennedy’s concurring opinion, U.S. v. LOPEZ:

“…it would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own in the first and primary instance.”

“…some Congresses have accepted responsibility to confront the great questions of the proper federal balance in terms of lasting consequences for the constitutional design. The political branches of the Government must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are to endure.
At the same time, the absence of structural mechanisms to require those officials to undertake this principled task, and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role. Although it is the obligation of all officers of the Government to respect the constitutional design …the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.”

“It does not follow, however, that in every instance the Court lacks the authority and responsibility to review congressional attempts to alter the federal balance. This case requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution.”

“The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term”

“Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. . . . In the tension between federal and state power lies the promise of liberty”

“Despite the breadth of powers that have been exercised under the Commerce Clause, it is unclear whether the clause would provide a solid constitutional foundation for legislation containing a requirement to have health insurance.”

“Although the federal government provides health coverage for many individuals …it has never required individuals to purchase health insurance.”

“Whether such a requirement would be constitutional… is perhaps the most challenging question posed by such a proposal”

“it is a novel issue whether Congress may… require a individual to purchase a good or a service.”

“if the… power can be used to mandate the purchases of a private individual, it could be perceived as virtually unlimited in scope.”

Just one other thought (from a layman’s perspective). There have been many references here to “States rights” including the author which is fine. From my point of view the Federal Government in this case is sort of jumping right over the State and going directly after me. I don’t like Chevy’s. All kidding aside I don’t know who to be more afraid anymore, the Taliban, my own government and or my Countrymen?

Years ago I read a case called Wickard v. Filburn and the well reasoned absurdities provided by the lawyers to the court which reliably parrotted those absurdities into reasonability reminded me so identically of the Abbot & Costello routine about “What if Everybody [stopped buying mustard]” that it’s been irrevocably branded into my very marrow .

This same Wickard v. Filburn has recently come up again, so I was wandering around the search engines in hopes of finding some scholarly work on the obvious connection between “Abbot Costello Wickard Filburn”. The most promising link sent me to this page.

I’m weary enough now not to be disappointed in the progress of human affairs, so I wasn’t the least bit disappointed that what I was looking for don’t seem to exist, here, either. But though the thread seems to have been closed a while, I still can’t help but see poor Jon’s final concern standing there bare and alone and left out in the cold begging for at least a flashlight to cast the shadow back into Plato’s Cave –

So to all who ponder Jon’s concern I say . . .

Until the lawyers quit asking the judges if the red light is yellow or green, you best remember there was no Taliband until the costs of repairing the WTC’s structural errors started reaching toward the Trillion dollar mark; A man’s Greatests enemies come from his own house.